Federal Register / Vol. 71, No. 17 / Thursday, January 26, 2006 / Rules and Regulations 4297 

Unfunded Mandates Reform 

We have determined and certify 

pursuant to the Unfunded Mandates 

Reform Act, 2 U.S.C. 1502 et seq., that 

this rulemaking will not significantly or 

uniquely affect small governments or 

produce a Federal mandate of $100 

million or more in any given year. 

Therefore, this rule does not constitute 

a significant regulatory action under the 

Unfunded Mandates Reform Act. 

Civil Justice Reform—Executive Order 

12988 

In promulgating this rule, we have 

determined that these regulations meet 

the applicable standards provided in 

Sections 3(a) and 3(b)(2) of Executive 

Order 12988. 

Takings 

In accordance with Executive Order 

12630, this rule, authorized by the 

Migratory Bird Treaty Act, does not 

have significant takings implications 

and does not affect any constitutionally 

protected property rights. This rule will 

not result in the physical occupancy of 

property, the physical invasion of 

property, or the regulatory taking of any 

property. A takings assessment is not 

required. 

Federalism Effects 

This rule does not have a substantial 

direct effect on fiscal capacity, change 

the roles or responsibilities of Federal or 

State governments, or intrude on State 

policy or administration. In accordance 

with Executive Order 13132, this 

regulation does not have significant 

federalism effects, nor does it have 

sufficient federalism implications to 

warrant the preparation of a Federalism 

Assessment. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951) and 512 

DM 2, we have determined that this rule 

has no effects on Federally recognized 

Indian tribes. 

List of Subjects in 50 CFR Part 20 

Exports, Hunting, Imports, Reporting 

and recordkeeping requirements, 

Transportation, Wildlife. 

■ For the reasons discussed in the 

preamble, we amend part 20, subchapter 

B, chapter I of Title 50 of the Code of 

Federal Regulations as follows: 

PART 20—[AMENDED] 

■ 1. The authority citation for part 20 

continues to read as follows: 

Authority: 16 U.S.C. 703–712; 16 U.S.C. 

742a–j; Pub. L. 106–108. 

■ 2. Section 20.21 is amended by 

revising paragraph (j) to read as follows: 

§ 20.21 What hunting methods are illegal? 

* * * * * 

(j) While possessing loose shot for 

muzzle loading or shotshells containing 

other than the following approved shot 

types. 

Approved shot type * Percent composition by weight Field testing device ** 

bismuth-tin .......................................................... 97 bismuth, 3 tin .............................................. HOT*SHOT. *** 

iron (steel) .......................................................... iron and carbon ................................................ Magnet or HOT*SHOT. 

iron-tungsten ....................................................... any proportion of tungsten, ≥1 iron ................. Magnet or HOT*SHOT. 

iron-tungsten-nickel ............................................ ≥1 iron, any proportion of tungsten, up to 40 

nickel.

Magnet or HOT*SHOT. ** 

tungsten-bronze .................................................. 51.1 tungsten, 44.4 copper, 3.9 tin, 0.6 iron 

and 60 tungsten, 35.1 copper, 3.9 tin, 1 iron.

Rare Earth Magnet. 

tungsten-iron-copper-nickel ................................ 40–76 tungsten, 10–37 iron, 9–16 copper, 5–

7 nickel.

HOT*SHOT or Rare Earth Magnet. 

tungsten-matrix ................................................... 95.9 tungsten, 4.1 polymer .............................. HOT*SHOT. 

tungsten-polymer ................................................ 95.5 tungsten, 4.5 Nylon 6 or 11 ..................... HOT*SHOT. 

tungsten-tin-iron .................................................. any proportions of tungsten and tin, ≥1 iron ... Magnet or HOT*SHOT. 

tungsten-tin-bismuth ........................................... any proportions of tungsten, tin, and bismuth. Rare Earth Magnet. 

tungsten-tin-iron-nickel ....................................... 65 tungsten, 21.8 tin, 10.4 iron, 2.8 nickel ...... Magnet. 

* Coatings of copper, nickel, tin, zinc, zinc chloride, and zinc chrome on approved nontoxic shot types also are approved. 

** The information in the ‘‘Field Testing Device’’ column is strictly informational, not regulatory. 

*** The ‘‘HOT*SHOT’’ field testing device is from Stream Systems of Concord, CA. 

* * * * * 

Dated: January 13, 2006. 

Paul Hoffman, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 06–745 Filed 1–25–06; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

[Docket No. 011011247–6006–03; I.D. 

082701E] 

RIN 0648–AP62 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Rocket Launches from 

Kodiak Island, AK 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

the Alaska Aerospace Development 

Corporation (AADC), is issuing 

regulations to govern the unintentional 

takings of small numbers of marine 

mammals incidental to rocket launches 

from the Kodiak Launch Complex (KLC) 

on Kodiak Island, AK. Issuance of 

regulations is required by the Marine 

Mammal Protection Act (MMPA) when 

the Secretary of Commerce (Secretary), 

after notice and opportunity for 

comment, finds, as here, that such takes 

will have a negligible impact on the 

species and stocks of marine mammals 

and will not have an unmitigable 

adverse impact on their availability for 

subsistence uses. These regulations do 

not authorize AADC’s rocket launch 

activities, as such authorization is not 

within the jurisdiction of the Secretary. 


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4298 Federal Register / Vol. 71, No. 17 / Thursday, January 26, 2006 / Rules and Regulations 

Rather, these regulations govern the 

issuance of ‘‘Letters of Authorization’’

(LOAs) for the unintentional incidental 

take of marine mammals in connection 

with this activity and prescribe methods 

of taking and other means of effecting 

the least practicable adverse impact on 

marine mammal species and their 

habitat, and on the availability of the 

species for subsistence uses. In addition, 

NMFS incorporates reporting and 

monitoring requirements. 

DATES: Effective from February 27, 2006 

through February 28, 2011. 

A copy of the AADC application 

which contains a list of the references 

used in this document may be obtained 

by writing to Steve Leathery, Division of 

Permits, Conservation, and Education, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910–3226 or by telephoning the 

contact listed here (see FOR FURTHER

INFORMATION CONTACT). The NMFS 

Administrative Record will be 

maintained at the above address. 

Comments regarding the burden-hour 

estimate or any other aspect of the 

collection of information requirement 

contained in this proposed rule should 

be sent to NMFS via the means stated 

above, and to the Office of Information 

and Regulatory Affairs, Office of 

Management and Budget (OMB), 

Attention: NOAA Desk Officer, 

Washington, DC 20503, 

DavidlRustker@eap.omb.gov. 

FOR FURTHER INFORMATION CONTACT: Jolie 

Harrison, (301) 713–2289 ext 166, or 

Brad Smith, (907) 271–3023. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 101(a)(5)(A) of the MMPA(16 

U.S.C. 1361 et seq.) directs the Secretary 

to allow, upon request, the incidental, 

but not intentional taking of marine 

mammals by U.S. citizens who engage 

in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and regulations are issued. 

Authorization may be granted for 

periods of 5 years or less if the Secretary 

finds that the total taking will have a 

negligible impact on the species or 

stock(s), will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses, 

and regulations are prescribed setting 

forth the permissible methods of taking, 

other means of effecting the least 

practicable adverse impact on the 

affected species or stocks and their 

habitats, and the requirements 

pertaining to the monitoring and 

reporting of such taking. 

NMFS has defined ‘‘negligible 

impact’’ in 50 CFR 216.103 as ‘‘an 

impact resulting from the specified 

activity that cannot be reasonably 

expected to, and is not reasonably likely 

to, adversely affect the species or stock 

through effects on annual rates of 

recruitment or survival.’’

Except with respect to categories of 

activities not pertinent here, the MMPA 

defines ‘‘harassment’’ as: any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

[Level A harassment]; or (ii) has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment]. 

Summary of Request 

On July 26, 2001, NMFS received an 

application from the AADC under 

section 101(a)(5)(A) of the MMPA for 

authorization to take, by harassment, 

Steller sea lions (Eumetopias jubatus) 

incidental to rocket launches from KLC 

on Kodiak Island, Alaska. A proposed 

rule was published on October 29, 2004 

(69 FR 63114). Comments on the 

proposed rule received from the Marine 

Mammal Commission (MMC) 

recommended NMFS consider also 

authorizing take of Pacific harbor seals 

(Phoca vitulina richardsi), as they are 

also found in the vicinity of KLC. After 

consulting with AADC and reanalyzing 

the distribution and habits of harbor 

seals in the area, NMFS has included 

take of harbor seals in the final rule. 

These regulations will allow NMFS to 

issue annual Letters Of Authorization 

(LOAs) to the AADC. A full description 

of the operations is contained in the 

AADC application (AADC, 2001) which 

is available upon request (see 

ADDRESSES) or at: http:// 

www.nmfs.noaa.gov/protlres/PR2/ 

SmalllTake/ 

smalltakelinfo.htm#applications. 

The KLC is a commercial rocket 

launch complex owned and operated by 

the State of Alaska through the AADC. 

Located wholly on state-owned lands, 

KLC occupies 43 acres (0.2 km2) within 

a 3,100 acre (12.6 km2) parcel on the 

eastern side of Kodiak Island on the 

Narrow Cape peninsula. The KLC was 

designed to accommodate a variety of 

small, solid rockets including such 

vehicles as the Minuteman II, Taurus, 

Conestoga, and Athena (Lockheed 

Martin Launch Vehicle). The largest 

vehicle that can be launched from KLC 

is the Athena–2 (Lockheed Martin 

Vehicle–2). 

Launch operations at the KLC are 

authorized under license from the 

Federal Aviation Administration (FAA), 

Office of Associate Administrator for 

Commercial Space Transportation 

(AST), in accordance with the facility’s 

Environmental Assessment (EA) and 

stipulations in the EA’s Finding of No 

Significant Impact (FONSI) (see 61 FR 

32884, June 25, 1996). These 

stipulations included a requirement to 

develop a Natural Resource 

Management Plan (NRMP) to address 

monitoring and mitigation activities for 

protected species in the area. This plan 

was developed in coordination with 

NMFS utilizing comparison of 

anticipated sound pressure levels from 

rocket motors to be launched from the 

KLC with documented marine mammal 

disturbance responses to such noise. 

Measurement of Airborne Sound Levels 

The following section is provided to 

facilitate an understanding of airborne 

and impulsive noise characteristics. 

Amplitude is a measure of the pressure 

of a sound wave that is usually 

expressed on a logarithmic scale with 

units of sound level or intensity called 

the decibel (dB). Sound pressure level 

(SPL) is described in units of dB re 

micro-Pascal (micro-Pa); for energy, the 

sound energy level (SEL), a measure of 

the cumulative energy in a noise event, 

is described in terms of dB re microPa2–second (dB re micro-Pa2–s); and 

frequency, often referred to as pitch, is 

described in units of cycles per second 

or Hertz (Hz). In other words, SEL is the 

squared instantaneous sound pressure 

over a specified time interval, where the 

sound pressure is averaged over 5 

percent to 95 percent of the duration of 

the sound. 

For airborne noise measurements the 

convention is to use 20 micro-Pa as the 

reference pressure, which is the 

approximate threshold for onset of 

human hearing and is 26 dB above the 

underwater sound pressure reference of 

1 micro-Pa and is. However, the 

conversion from air to water intensities 

is more involved than this and is 

beyond the scope of this document. 

NMFS recommends interested readers 

review NOAA’s tutorial on this issue: 

http://www.pmel.noaa.gov/vents/ 

acoustics/tutorial/tutorial.html. 

Airborne sounds are also often 

expressed as broadband A-weighted 

(dBA) or C-weighted (dBC) sound levels. 

When frequency levels are made to 

correspond to human hearing, they are 

referred to as being A-weighted or Afiltered. With A-weighting, sound 

energy at frequencies below 1 kHz and 

above 6 kHz are de-emphasized and 

approximates the human ear’s response 

to sounds below 55 dB. C-weighting is 

often used in the analysis of highVerDate Aug<31>2005 14:52 Jan 25, 2006 Jkt 208001 PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 E:\FR\FM\26JAR1.SGM 26JAR1

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Federal Register / Vol. 71, No. 17 / Thursday, January 26, 2006 / Rules and Regulations 4299 

amplitude noises like explosions, and 

corresponds to the relative response to 

the human ear to sound levels above 85 

dB. C-weighting de-emphasizes ear 

frequency components of less than 

about 50 Hz. C-weight scaling is also 

useful for analyses of sounds having 

predominantly low-frequency sounds, 

such as sonic booms. For continuous 

noise like rocket launches, the 

important variables relevant to assessing 

auditory impacts or behavioral 

responses are intensity, frequency 

spectrum, and duration. In this 

document, sound levels have been 

provided with A-weighting. 

Description of the Activity 

To date there have been eight rocket 

launches from the KLC; however, the 

KLC facility is licensed to launch up to 

nine rockets per year. The first two 

launches used composite vehicles built 

from several stages taken from a 

decommissioned USAF Minuteman II 

launch vehicle, and were part of the 

U.S. Air Force (USAF) atmospheric 

interceptor technology (ait) program. 

The third and the sixth launches (March 

2001 and April 2002) were part of the 

USAF Quick Reaction Launch Vehicle 

(QRLV) program, and comprised of 

single stage M–56 motors taken from a 

decommissioned USAF Minuteman II 

launch vehicle. The fourth launch 

(September 2001) was a commercial 

Lockheed/Martin Athena rocket, which 

is the largest vehicle to be launched 

from KLC, and it placed four satellites 

into polar orbit. The fifth, seventh, and 

eighth launches (November 2001, 

December 2004, and February 2005) 

were Department of Defense (DoD) 

Strategic Target System (STARS) 

vehicles and consisted of the first two 

stages of a decommissioned A–3 missile 

and an Orbis third stage. 

Launches from the KLC are expected 

to be at high inclination with launch 

azimuths ranging from 125 to 225 

degrees in direction (AADC and AST, 

1996). At the easternmost azimuth, 

launch vehicle paths would pass over 

the eastern edge of Ugak Island; at the 

westernmost azimuth, the vehicle 

would pass along the southeastern edge 

of the Kodiak Archipelago. 

Approximately 70 seconds after launch, 

a typical launch vehicle would be more 

than 8 miles (12.5 km) high. Spent firststage rocket motors and fuel casings 

would impact the ocean’s surface from 

11 to 314 n-mi (20 to 582 km) 

downrange, depending on the launch 

vehicle (AADC and AST, 1996). Rocket 

motor sonic booms are predicted to 

reach the ocean surface over 20 miles 

(32 km) downrange beyond the outer 

continental shelf over deep ocean. 

Launch operations are a major source 

of noise on Kodiak Island, as the 

operation of launch vehicle engines 

produces significant sound levels. 

Generally, four types of noise occur 

during a launch. They are: (1) 

Combustion noise from launch vehicle 

chambers; (2) jet noise generated by the 

interaction of the exhaust jet and the 

atmosphere; (3) combustion noise from 

the post-burning of combustion 

products; and (4) sonic booms. The 

principal objective of the KLC rocket 

motor noise monitoring task within the 

NRMP was to measure A-weighted 

Sound Energy Levels (ASELs) at the 

Ugak Island Steller sea lion haulout. A 

secondary objective was to monitor 

sound levels on Narrow Cape close to 

bald eagle and/or Steller’s eider nests 

when present. ASELs were successfully 

recorded for the first four and the 

seventh launches from KLC at the Ugak 

Island Steller sea lion haulout and on 

Narrow Cape by the University of 

Alaska Anchorage’s Environment and 

Natural Resources Institute (ENRI). The 

Ugak Island haulout is located 

approximately 2 miles (3.2 km) from 

Narrow Cape and about 3.5 miles (5.6 

km) from the KLC launch pad on a 

narrow sand spit on the north side of 

the Island. The data gathered were 

weighted toward frequencies that 

humans are more sensitive to (1–6 kHz, 

A-weighted) and showed a wide 

variation in sound pressures among 

rocket motors, with the highest levels 

being associated with the largest launch 

vehicle flown. Variations in the KLC 

sound pressure record are likely due to 

such variables as engine size, engine 

bell shape, and local atmospheric 

conditions. Summaries of the findings 

for each of the measured rocket 

launches to date are described below. A 

complete description of the proposed 

rocket launches from KLC may be found 

in AADC’s application, which may be 

viewed at: http://www.nmfs.noaa.gov/ 

protlres/PR2/SmalllTake/ 

smalltakelinfo.htm#applications. This 

information is incorporated into this 

document by reference. 

ait–1 

The first launch from KLC occurred in 

November 1998, and was the first of the 

USAF ait program. Sound 

measurements from the ait–1 launch 

were collected using two sound level 

monitors (SLMs) that were deployed 26 

hours before launch on Ugak Island at 

the base of the spit used as a haulout by 

Steller sea lions. The SLMs were set to 

highlight sounds exceeding 65 dB, 

which was done after checking real-time 

sound levels in the field at each site 

prior to setting them to record data. If 

the exceedance levels were set too low, 

the SLMs would be deluged with data, 

and if they were set too high the SLMs 

would miss the event of interest. A 

digital audio tape (DAT) recorder was 

used to provide redundancy in 

recording noise frequencies and was 

placed about 0.75 mi (1.2 km) from the 

KLC launch pad. 

Recorded sound pressure levels 

(SPLs) of rocket motor noise for the ait–

1 at the Ugak Island haulout site were 

78.2 dB re 20 microPa with a peak level 

of 97 dB (Table 1). The associated ASEL 

at the Ugak Island haulout was 88.4 dB 

re 20 microPa2 s. In addition, the ASEL 

at the nearest location measured by the 

DAT recorder was 110 dB for a duration 

of 59 seconds. The bulk of the sound 

energy was at low frequencies and 

generally less than 4000 Hz. Most of the 

energy was from 100 to 500 Hz. 


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Of the eight noise events recorded 

above 65 dB at Ugak Island, ENRI 

determined that two are attributable to 

helicopter noise and one to the firing of 

the ait–1 rocket motor. Sounds at the 

Ugak Island site were above 65 dB for 

a total of 33 seconds at the time the 

rocket motor was firing. Due to the 

isolation of this site, the remainder of 

the events are most likely attributable to 

surf or wind action. 

ait–2 

USAF launched a second rocket from 

KLC on September 15, 1999. Based on 

experience from the first launch, ENRI 

set the SLMs to highlight sounds 

exceeding 70 dB and deployed them 

about 19 hours before the launch. Sound 

pressures at Ugak Island were slightly 

higher for the second launch than for 

the first launch. Recorded maximum 

SPLs of rocket motor noise for the ait–

2 at the Ugak Island haulout site were 

81.5 dB, with a peak level of 101.5 dB, 

and a corresponding SEL of 92.2 dB. 

The bulk of the sound energy was at low 

frequencies and generally less than 2500 

Hz. Most of the energy was from 25 to 

1000 Hz. 

There were 15 noise events above 70 

dB within the 19 hours of recording at 

Ugak Island, all of which can be 

attributed to helicopter, airplane, or 

rocket noise; none coincides with a 

stampede of Steller sea lions off the 

Ugak Island haulout 3.5 hours previous 

to the rocket launch. Sounds at the Ugak 

Island site were above 70 dB for a total 

of 30 seconds at the time the rocket 

motor was firing. Natural background 

noise levels above 70 dB were almost 

nonexistent during this launch. 

QRLV–1 

On March 22, 2001, the USAF 

conducted the third launch from KLC. 

SLMs set to highlight sounds exceeding 

70 dB at the base of the Ugak Island sea 

lion haulout were again used by ENRI 

to record sound frequency and intensity, 

and were deployed 22 hours before the 

launch. The recorded sound levels at 

Ugak Island were significantly lower for 

the QRLV–1 launch than for either of 

the ait launches. This is likely due to 

the vehicle being smaller, and possibly 

to a different trajectory and local 

atmospheric condition. Recorded 

maximum SPLs resulting from QRLV 

rocket motor noise at the Ugak Island 

haulout site were 73.3 dB, with a peak 

level of 87.2 dB, and a corresponding 

SEL of 80.3 dB. The bulk of the sound 

energy was at low frequencies and 

generally less than 2500 Hz. Most of the 

energy was from 16 to 2000 Hz. 

There were 17 noise events above 70 

dB at Ugak Island. With the exception 

of the rocket launch, all can be related 

to helicopter noise. Sounds at the Ugak 

Island site were above 70 dB for a total 

of 10.9 seconds at the time the rocket 

motor was firing. Natural background 

noise levels above 70 dB were almost 

nonexistent during this launch. Rocket 

noise measurements for the QRLV–2 

rocket launch on April 24, 2002, the 

sixth rocket launched from KLC, were 

not recorded, though most likely they 

would be similar to those measured 

during the first QRLV launch. 

Athena 

The fourth launch from KLC occurred 

on September 29, 2001, and involved a 

commercial Lockheed/Martin Athena, 

which is the largest vehicle to be 

launched from KLC. SLMs were again 

set to highlight sounds exceeding 70 dB 

and were deployed by ENRI at the Ugak 

Island haulout four hours before the 

launch. The recorded sound levels at 

Ugak Island were significantly higher 

for the Athena launch than for previous 

launches, which is likely due to the size 

of the vehicle. Recorded maximum SPLs 

resulting from Athena rocket motor 

noise at the Ugak Island haulout site 

were 90.8 dB, with a peak level of 115.9 

dB, and a corresponding SEL of 101.4 


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dB. The bulk of the sound energy was 

at low frequencies and generally less 

than 2000 Hz. 

There were three exceedance events 

above 70 dB at Ugak Island and Narrow 

Cape within the four hours of recording, 

two of which can be attributed to 

helicopter noise and the other to the 

rocket launch. Sounds at the Ugak 

Island site were above 70 dB for 49.6 

seconds at the time the rocket motor 

was firing. Natural background noise 

levels above 70 dB were nonexistent 

during this launch. 

STARS 

On November 9, 2001, the Department 

of Defense launched a STARS vehicle 

from KLC; however, the rocket was 

deliberately destroyed over open ocean 

almost immediately because it lost 

communication with KLC. The STARS 

program provides ballistic missile 

targets to test various sensors and 

ground-based interceptors. STARS 

vehicles will include first- and secondstage Polaris A3 boosters and a thirdstage Orbus–1 booster. The range of this 

system is 620 to 3,418 miles (998 to 

5500 km). 

The seventh launch from KLC, of the 

STARS IFT 13C, occurred on December 

14, 2004. SLMs were set to highlight 

sounds exceeding 70 dB and were 

deployed by ENRI only at Narrow Cape 

(because sea lions were not present at 

Ugak Island) eight hours before the 

launch. Narrow Cape is significantly 

closer to the launch site than Ugak 

Island. The recorded sound levels at 

Narrow Cape were higher for this 

launch than for previous launches, 

which is likely due to a different 

trajectory and local atmospheric 

conditions. Recorded maximum SPLs 

resulting from rocket motor noise at 

Narrow Cape were 105.2 dB, with a 

peak level of 128.8 dB, and a 

corresponding SEL of 114.3 dB. The 

bulk of the sound energy was at low 

frequencies and generally less than 2000 

Hz. There were over three hundred 

exceedance events above 70 dB at 

Narrow Cape within the eighteen hours 

of recording, two of which can be 

attributed to helicopter noise and the 

other to the rocket launch. With the 

exception of helicopter noise and the 

rocket launch, all exceedances at or just 

above 70 dB can be connected to 

weather-related noise (wind and rain). 

Rocket noise measurements for the 

STARS IFT 14 rocket launch on 

February 13, 2005, the eighth rocket 

launched from KLC, were not recorded, 

though most likely they would be 

similar to those measured during the 

STAR IFT 13C launch. 

Comments and Responses 

On October 29, 2004 (69 FR 63114), 

NMFS published a notice of proposed 

rulemaking on AADC’s request to take 

marine mammals incidental to rocket 

launches at KLC and requested 

comments, information and suggestions 

concerning the request. During the 45–

day public comment period, NMFS 

received comments from three members 

of the public and the MMC. The MMC 

supports NMFS’ intent to implement 

incidental take regulations for the 

AADC’s activities at KLC provided that 

the mitigation and monitoring activities 

described in the AADC application for 

regulations are incorporated into the 

proposal. 

Comment 1: The MMC noted that 

harbor seals and other marine mammals 

occur in the vicinity of KLC and 

recommended that NMFS consider 

providing additional coverage to the 

applicant by authorizing take of harbor 

seals and other marine mammals to 

reduce the possibility that the applicant 

may engage in an impermissible taking. 

Response: After reviewing available 

information regarding the abundance, 

distribution, and behavior of marine 

mammals around KLC and consulting 

with AADC, NMFS has included 

authorization for the take of harbor seals 

in this final rule. NMFS determined, 

however, that no other marine mammals 

were likely to be taken by the rocket 

launches, and, therefore, AADC has not 

been authorized for the take of any other 

marine mammal species. 

Comment 2: The MMC recommended 

that AADC contact the U.S. Fish and 

Wildlife Service (USFWS) to determine 

if authorization for the incidental taking 

of small numbers of sea otters is needed. 

Response: AADC is consulting with 

the USFWS regarding potential take of 

sea otters. 

Comment 3: The MMC further 

recommended that the proposed 

monitoring program be expanded to 

determine the effects on harbor seals, 

sea otters, and other marine mammal 

species to determine if authorizations 

for these species are needed or, if 

authorization to take these species is 

provided, to verify that the impacts on 

the affected stocks are negligible. 

Response: As take of harbor seals is 

authorized under this rule, 

comprehensive requirements for the 

monitoring of harbor seals are now 

included. Additionally, AADC is 

required to report sightings of any 

marine mammals seen during aerial 

surveys or on videotapes. 

Comment 4: One commenter 

expressed strong objections to the rocket 

launch facility and asserted that it was 

damaging to the ecosystem and a waste 

of money. 

Response: These regulations do not 

authorize AADC’s rocket launch 

activities, because such authorization is 

not within the jurisdiction of the 

Secretary. Rather, these regulations 

authorize the unintentional incidental 

take of marine mammals in connection 

with this activity and prescribe methods 

of taking and other means of effecting 

the least practicable adverse impact on 

marine mammal species and their 

habitat, and on the availability of the 

species for subsistence uses. Thus, the 

comment is outside of the scope of this 

rulemaking. 

Comment 5: Another commenter also 

objected forcefully to the project (see 

response to Comment 4, above) and 

further asserted that there is no reason 

to allow this killing of marine mammals. 

This commenter also expressed doubt in 

the accuracy of the measured noise 

levels at the site. 

Response: Section 101(a)(5)(A) of the 

Marine Mammal Protection Act 

(MMPA) (16 U.S.C. 1361 et seq.) states 

that the Secretary shall allow the 

incidental, but not intentional taking of 

small numbers of marine mammals by 

U.S. citizens who engage in a specified 

activity (other than commercial fishing) 

within a specified geographical region if 

certain findings are made and 

regulations are issued. NMFS has 

determined that this activity will take 

only small numbers of marine 

mammals, that the taking will have a 

negligible impact on the affected species 

or stocks, and that the activity will not 

have an unmitigable adverse effect on 

the availablility of the species or stock 

for subsistence uses. NMFS has also set 

forth permissible methods of taking, 

means of effecting the least practicable 

adverse effect on the species or stock, 

and requirements pertaining to the 

monitoring and reporting of such taking. 

Therefore, NMFS has promulgated these 

regulations and will issue the 

authorization. 

The sound measurements reported 

from Ugak Island are similar in level to 

those reported at other launch sites. If 

information were provided to NMFS 

that suggested AADC’s sound 

measurements were incorrect, NMFS 

would investigate. The rule includes the 

following requirement: ‘‘In coordination 

and compliance with the Alaska 

Aerospace Development Corporation, 

the National Marine Fisheries Service 

may place an observer on Kodiak or 

Ugak Islands for any marine mammal 

monitoring activity prior to, during, or 

after a missile launch to monitor 

impacts on marine mammals, provided 

observers are not within the calculated 


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danger zone of the rocket’s flight path 

during a launch.’’

Description of Habitat and Marine 

Mammals Affected by the Activity 

The KLC is located on the southeast 

facing tip of a small peninsula on the 

eastern side of Kodiak Island. The 

rocket launch site is approximately one 

mile (1.6 km) from the southeast shore 

(Narrow Cape). The primary KLC 

environmental monitoring study area, 

and area of anticipated effects, was set 

in September 1996 at a meeting between 

AADC and representatives of the 

USFWS, NMFS, the FAA, and ENRI. 

The area was chosen based on modeled 

ASELs and includes the lands and 

waters within a 6–mile (9.7–km) radius 

extending out from the KLC launchpad. 

The only marine mammal haulouts 

within this area are on Ugak Island. 

Ugak Island is a triangular-shaped 

island located about 3.5 miles (5.6 km) 

southeast of the launch site. The north 

side of Ugak island culminates in a 

sandy spit on the west end where most 

of the sea lions haul out, though some 

also haul out at the southern tip of the 

island. The southeastern facing side of 

the island, where most of the harbor 

seals haul out, is very rocky, backed by 

300–ft (91–km) cliffs (or higher), and is 

subject to very strong wave action. The 

west side of the island is steeper than 

the north side, but not as steep as the 

east, but does not appear to be used 

much by either pinniped. 

Narrow Cape, Ugak Island, and the 

adjacent waters within the primary KLC 

study area provide habitat for sea otters, 

harbor seals, Steller sea lions (listed as 

endangered), gray whales, humpback 

whales (listed as endangered), northern 

fur seals, northern right whales, and 

minke whales. Harbor seals and sea 

otters are common year-round, as are 

killer whales, Dall’s porpoise, and 

harbor porpoise. Other species of 

cetaceans that may occur in the area, 

such as Pacific white-sided dolphins, 

Risso’s dolphins, northern right whale 

dolphins, pilot whales, Cuvier’s beaked 

whales, Baird’s beaked whale, 

Stegneger’s beaked whale, sperm 

whales, fin whales, sei whales and blue 

whales are rare as they are primarily 

pelagic (ENRI, 1995–98). General 

information on harbor seals and other 

marine mammal species can be found in 

Angliss and Lodge (2004), which are 

available at the following URL: http:// 

www.nmfs.noaa.gov/protlres/PR2/ 

StocklAssessmentlProgram/ 

sars.html. Sea otters (Enhydra lutris) are 

managed by the USFWS. Information on 

this species may be found at 

www.fws.gov. Please refer to those 

documents and the application for 

further information on these species. 

Steller Sea Lions 

The Steller sea lion is described by 

two stocks - those west of 144° W. long. 

listed as endangered under the ESA, and 

the eastern stock listed as threatened 

under the ESA. Sea lions hauled out on 

Ugak Island, the northern spit of which 

is designated as critical habitat for this 

species, are of the western stock. The 

most recent comprehensive estimate 

(pups and non-pups) of Steller sea lion 

abundance in Alaska is based on aerial 

surveys of non-pups in June 2002 and 

ground based pup counts in June and 

early July of 2001 and 2002. Data from 

these surveys represents actual counts at 

all major rookeries and haulouts. The 

best available minimum population 

estimate for the western stock of Steller 

sea lions is the sum of the total number 

of non-pups counted in 2002 (26,602) 

and the number of pups counted in 

2001 and 2002 (9,211), which is 34,779 

(Angliss and Lodge, 2004). This is 

considered a minimum estimate because 

it has not been corrected to account for 

animals which were at sea during the 

surveys. Though non-pup numbers 

increased 5.5–13.7 percent from 2000–

2002, the 2002 count was still 5.4 

percent below the 1998 count and 36.7 

percent below the 1990 count and the 

long-term, average decline for 1990–02 

is 4.3 percent per year (Angliss and 

Lodge, 2004). 

On Ugak Island sea lions haul out 

primarily on the northern-most sand 

spit of the island, but also less 

frequently on the east/south side of the 

island. These haulouts are occupied 

primarily from late June to early 

October. Opportunistic counts of Steller 

sea lions conducted at Ugak Island 

every year since 1993 indicate a 

maximum of over 350 animals in the fall 

of 1997 and a steady decrease in 

numbers to less than 40 since 2001 

(Kate Wynne, pers. comm, 2005). Two 

of the 8 launches have occurred during 

times when sea lions are typically 

present, during September of 1999, 60–

70 sea lions were seen, and during 

September of 2001, no sea lions were 

present on the days before and after the 

launch. 

Pacific Harbor Seals 

Harbor seals live in the Pacific Ocean 

from Baja California in Mexico 

northward to the Aleutian Islands of 

Alaska. The population is not listed as 

‘‘endangered’’ or ‘‘threatened’’ under the 

ESA; nor is this species listed as 

‘‘depleted’’ or as a ‘‘strategic stock’’

under the MMPA. Harbor seals are 

primarily non-migratory and the seals 

around KLC are considered part of the 

Gulf of Alaska stock, which occurs from 

Cape Suckling to Unimak Pass, 

including animals throughout the 

Aleutian Islands. The most recent 

comprehensive aerial survey of harbor 

seals in Alaska were conducted in 1994 

and 1996. When a correction factor is 

used to account for animals that were in 

the water during the counts, a minimum 

population estimate of this stock of 

harbor seals is 28,917 (Angliss and 

Lodge, 2004). The Kodiak Island 

population is estimated to have 

increased 7.2 percent annually from 

1992–1996 (Angliss and Lodge, 2004) 

and survey data from 1992–2004 shows 

an even steeper increase at Ugak Island 

(Wynne, per. Comm., 2005), though 

numbers throughout the Gulf of Alaska 

are still lower than they were in the 

1970s and 1980s. 

Harbor seals are present on Ugak 

Island year round. They are found 

primarily on the east/south side of the 

island, backed by high, steep cliffs, but 

they also sometimes haul out on the 

north side of the island and on the rock 

croppings on the north and east sides of 

the island. Harbor seal pupping occurs 

on both Ugak between the middle of 

May and June. Yearly harbor seal counts 

at Ugak Island taken in August since 

1992 show a steady increase from 

approximately 200 animals in 1992 to 

over 900 in 2004 (Wynne, pers. Comm., 

2005). Surveys conducted in 1993 and 

1994 found 88 and 96 harbor seal pups, 

respectively (AADC 1996). 

Northern Fur Seals 

The northern fur seal (Callorhinus 

ursinus) occurs offshore of the KLC site 

near the continental shelf break from 

January through April. Because of the 

distance from the launch site and the 

fact that they will be swimming through 

and not stopping (see Cetaceans, below), 

NMFS believes it unlikely that fur seals 

will be affected by the launch noise and 

they will not be addressed further. 

Cetaceans 

As noted, several species of cetaceans 

occupy the waters around KLC. 

However, airborne noise is generally 

reflected at the sea surface outside of a 

26° cone extending down from an 

airborne source (Richardson et al., 

1995). Submerged animals would have 

to be directly under the noise sources 

before they could hear it, and, 

approximately 70 seconds after launch, 

a typical launch vehicle would be more 

than 8 miles (12.9 km) high. Underwater 

acoustic transmissions are complex, and 

affected by the level and frequency of 

noise, sea state and other surface 

conditions, and water depth. Given the 


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specific area, within a specific short 

time that a cetacean would need to be 

traveling through surface/or close to 

surface water to be exposed to rocket 

noise and the measured rocket sound 

levels and the attenuation that would 

occur before the noise reached deeper 

waters, NMFS believes it unlikely that 

any cetaceans will be impacted by the 

rocket noise. 

Potential Effects of Rocket Launches on 

Marine Mammals 

As outlined in several previous NMFS 

documents, the effects of noise on 

marine mammals are highly variable, 

and can be categorized as follows (based 

on Richardson et al., 1995): 

(1) The noise may be too weak to be 

heard at the location of the pinniped 

(i.e., lower than the prevailing ambient 

noise level, the hearing threshold of the 

animal at relevant frequencies, or both); 

(2) The noise may be audible but not 

strong enough to elicit any overt 

behavioral response; 

(3) The noise may elicit reactions of 

variable conspicuousness and variable 

relevance to the well being of the 

pinniped; these can range from 

temporary alert responses to active 

avoidance reactions such as stampedes 

into the sea from terrestrial haulout 

sites; 

(4) Upon repeated exposure, 

pinnipeds may exhibit diminishing 

responsiveness (habituation), or 

disturbance effects may persist; the 

latter is most likely with sounds that are 

highly variable in characteristics, 

infrequent and unpredictable in 

occurrence (as are vehicle launches), 

and associated with situations that the 

pinniped perceives as a threat; 

(5) Any anthropogenic noise that is 

strong enough to be heard has the 

potential to reduce (mask) the ability of 

pinnipeds to hear natural sounds at 

similar frequencies, including calls from 

conspecifics, and environmental sounds 

such as surf noise; 

(6) If mammals remain in an area 

because it is important for feeding, 

breeding or some other biologically 

important purpose even though there is 

chronic exposure to noise, it is possible 

that there could be noise-induced 

physiological stress; this might (in turn) 

have negative effects on the well-being 

or reproduction of the animals involved; 

and 

(7) Very strong sounds have the 

potential to cause temporary or 

permanent reduction in hearing 

sensitivity. In terrestrial mammals, and 

presumably marine mammals, received 

sound levels must far exceed the 

animal’s hearing threshold for there to 

be any temporary threshold shift (TTS). 

For transient sounds, the sound level 

necessary to cause TTS is inversely 

related to the duration of the sound. 

Received sound levels must be even 

higher for there to be risk of permanent 

hearing impairment. In addition, intense 

acoustic or explosive events may cause 

trauma to tissues associated with organs 

vital for hearing, sound production, 

respiration, and other functions. This 

trauma may include minor to severe 

hemorrhage. 

Solid rocket boosters from KLC 

launches will fall into the ocean away 

from any known or potential haul-out 

sites and do not pose any measurable 

threat to marine mammals. Launch 

noise is expected to occur over the 

coastal habitats of Narrow Cape and 

Ugak Island during every launch, while 

sonic booms will occur approximately 

40 nm (74 km) downrange over open 

ocean, beyond the outer continental 

shelf, and are unlikely to affect marine 

mammals. Airborne launch sounds will 

mostly reflect or refract from the water 

surface and, except for sounds within a 

diameter of approximately 26 degrees 

directly below the launch vehicle, will 

not penetrate into the water column. 

The sounds that do penetrate will not 

persist in the water for more than a few 

seconds. 

The primary sea lion haulout on Ugak 

Island is a spit facing KLC, and animals 

at this location would likely hear a 

rocket launch. Steller sea lions generally 

occupy this haulout from late summer 

to the early fall post-breeding period 

(late June to early October), historically 

by up to several hundred sea lions. 

Small numbers of harbor seals may haul 

out on the eastern end of the shoreline 

that extends from the spit. Harbor seals 

and, less frequently sea lions, also haul 

out on the southeast side of Ugak Island, 

but this area is sheltered from direct 

sight of and sound from KLC by a 300–

ft (91.4–m) island cliff and, because it 

receives heavy surf, it already has high 

ambient noise levels. Because 

background ambient noise often 

interferes with or masks the ability of an 

animal to detect a sound even when that 

sound is above its absolute hearing 

threshold (Richardson et al., 1995), it 

seems unlikely that animals hauled out 

at this location would hear noise 

associated with rocket launches from 

KLC. 

Past Monitoring Results at KLC 

ENRI was tasked under contract to the 

AADC to conduct environmental 

monitoring studies for rocket launches 

from KLC. In addition to collecting 

rocket noise data on the northern spit of 

Ugak Island, ENRI conducted aerial 

surveys over and collected real-time 

video footage at the seasonally occupied 

northern spit haulout site in 

conjunction with the three KLC 

launches when Steller sea lions might 

have been present at the haulout: ait–1 

on November 5, 1998; ait–2 on 

September 15, 1999; and Athena on 

September 29, 2001. The only time 

Steller sea lions were observed 

occupying the haulout was during the 

ait–2 launch monitoring period. Sixty to 

seventy animals were on the haulout 

about 5 hours pre-launch. Due to below 

freezing temperatures, the video system 

shut off about 4 hours prior to the ait–

2 launch. The video data show Steller 

sea lions fighting or sleeping on the 

haulout, and then suddenly stampeding 

into the water and milling about 

immediately offshore. The cause of the 

stampede is not apparent in the video 

and no stimulus could be linked to the 

response (from the noise recordings or 

otherwise). When, or if, any of the 

Steller sea lions returned to the haulout 

before the ait–2 launch is unknown. 

Although sea lions may have returned to 

the rocks and fled the haulout again as 

a result of rocket noise, a clear-cut 

stimulus response of sea lion behavior 

to rocket noise cannot be postulated 

without video data from the time of the 

launch. Approximately 1 hour after the 

rocket was launched, no sea lions were 

seen hauled out and 50 to 60 sea lions 

were observed in the water immediately 

offshore. The day after the launch, 60 to 

70 animals were seen hauled out at the 

same spot. Some of these animals could 

be the same ones that were flushed from 

the haulout the day before though they 

could also be different animals. Though 

sea lions have been shown to acclimate 

to disturbance from rocket launches at 

other spaceports (Thorson and Francine, 

1999), it is unlikely that this is the case 

at KLC considering the infrequency of 

launches. Alternatively, approximately 

280 harbor seals were seen at two 

locations on the east side of the island 

(next to the 300–ft (91–m) cliffs) during 

the aerial survey flown 5 hours prelaunch. During the one hour postlaunch aerial overflight, the same 

number of harbor seals were hauled out 

at the same locations, which would 

suggest that they did not flush into the 

water, which would further suggest that 

the sound was blocked or masked by the 

high cliffs and high ambient noise on 

that side of the island. Though it is 

possible that the harbor seals were 

flushed into the water and then quickly 

hauled out again before the post-flight 

aerial survey, it seems unlikely 

considering that harbor seals are 

typically significantly more sensitive to 


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noise than sea lions and the sea lions 

were still in the water. 

Unlike at the ait–2 launch discussed 

above, no Steller sea lions were present 

at the Ugak Island haulout during the 

ait–1 and Athena launches and it was 

not possible to relate any behavioral 

responses to the recorded noise levels. 

Harbor seals were present at the other 

two launches, but monitoring was not 

required and the surveys were not 

conducted immediately before and after 

the launch and could not establish a 

stimulus response to the rocket launch. 

For all launches, however, launch 

noises recorded at the haulout site were 

within the audible ranges of pinnipeds 

(Richardson et al., 1995) and both 

Steller sea lions and harbor seals would 

have heard them had they been present. 

Further, recorded sound pressures were 

at, and sometimes above, levels known 

to occasionally induce startle responses 

in pinnipeds (Richardson et al., 1995). 

Rocket launches will present Steller sea 

lions and harbor seals with novel visual 

and possibly tactile stimuli as well as 

unusually loud sounds and bright lights 

from the burning rocket and white 

exhaust flume. 

Steller Sea Lions 

The behavioral data record for Steller 

sea lions is small throughout the North 

Pacific range and typically is focused on 

reproductive behaviors. In general, 

studies have shown that responses of 

pinnipeds on beaches to acoustic 

disturbance arising from rocket and 

target missile launches are highly 

variable. This variability may be due to 

many factors, including species, age 

class, and time of year. Porter (1997) 

observed Steller sea lions fleeing into 

the water for a wide variety of reasons 

such as helicopter overflights, bird 

flybys, and the presence of nearby 

humans. He also noted sea lions 

stampedes into the water that could not 

be correlated with any observed 

stimulus. There is also evidence that 

both time of day and temperature alter 

the probability of entry into the water 

(animals are more likely to enter the 

water when already overheated) 

(Bowles, 2000). Steller sea lions have 

been seen to mill about just offshore 

with their heads up in a heightened 

state of watchfulness (Porter, 1997) and 

remain close to the haulout until they 

sense it is safe to go back ashore 

(Lockheed Martin Environmental 

Services, 1999). 

Noise generated from aircraft and 

helicopter activities associated with the 

launches may provide a potential 

secondary source of incidental 

harassment, and the physical presence 

of aircraft or biologists could also lead 

to non-acoustic effects on marine 

mammals involving visual or other cues. 

However, other disturbance-related data 

collected during the ait–2 study (ENRI, 

2000) does not fit well with stimulus 

response data from other sources. Sea 

lions are widely thought to be intolerant 

of helicopter noise (Porter, 1997), yet 

the animals in question did not appear 

to respond to multiple exposures of 

more intense helicopter noise at Ugak 

Island than that from the rocket (ENRI, 

2000). They are also thought to be 

intolerant of humans on foot, yet a video 

from the ait–2 study shows hauled-out 

sea lions on Ugak Island undisturbed by 

biologists actively engaged in work 

within 328 ft (100 m) of them. The Ugak 

Island haulout is also regularly exposed 

to disturbances from aircraft and fishing 

vessels transiting Narrow Strait. 

Recent studies (Lawson et al., 2002, 

and NAWS, 2002) suggest that Level B 

harassment, as evidenced by beach 

flushing, will sometimes occur upon 

exposure to launch sounds with ASEL’s 

of 100 dBA (re 20 micro-Pa2 -sec) or 

higher. It is expected that most received 

noise levels at Ugak Island would be at 

levels which are likely to cause a 

temporary disturbance. The infrequent 

(up to nine times per year) and brief (no 

more than one minute as heard from 

Ugak Island) nature of these sounds that 

would result from a rocket launch 

would cause masking for not more than 

a very small fraction of the time during 

any single launch day and it is unlikely 

that pinnipeds will become habituated 

to launch sounds. In addition, the 

extremely rapid departure of the rockets 

means that pinnipeds would be exposed 

to increased sound levels for very short 

time intervals, and because launches are 

conducted relatively infrequently, 

neither physiological stress nor hearing 

related injuries are likely. Therefore, 

NMFS anticipates that the effects of 

rocket launches from KLC would have 

no significant effects on the abilities of 

sea lions to hear one another or to detect 

natural environmental sounds, and 

would have no more than a negligible 

impact on Steller sea lion populations. 

Harbor Seals 

An ongoing scientific research 

program has been conducted since 1997 

to determine the long-term cumulative 

impacts of space vehicle launches on 

the haul-out behavior, population 

dynamics and hearing acuity of harbor 

seals at Vandenberg Air Force Base 

(VAFB) in California. The response of 

harbor seals to rocket launch noise 

depended on the intensity of the noise 

(dependent on the size of the vehicle 

and its proximity) and the age of the 

seal. The percentage of seals leaving the 

haul-out increases with noise level up to 

approximately 100 dB ASEL, after 

which almost all seals leave, although 

recent data has shown that an increasing 

percentage of seals have remained on 

shore, and those that remain are adults 

(Thorson et al., 1999). Given the high 

degree of site fidelity among harbor 

seals, it is likely that those seals that 

remained on the haul-out site during 

rocket launches had previously been 

exposed to launches; that is, it is 

possible that adult seals have become 

acclimated to the launch noise and react 

differently than the younger 

inexperienced seals. The louder the 

launch noise, the longer it took for seals 

to begin returning to the haulout site 

and for the numbers to return to prelaunch levels. In two past Athena 

IKONOS launches with ASELs of 107.3 

and 107.8 dB at the closest haulout site, 

seals began to haulout again 

approximately 16–55 minutes postlaunch (Thorson et al., 1999). In 

contrast, noise levels from an Atlas 

launch and several Titan II launches 

had ASELs ranging from 86.7 to 95.7 dB 

at the closest haulout, and seals began 

to return to the haulout within 2–8 

minutes post-launch. Seals returned to 

the haulouts within 2 to 55 minutes of 

the launch disturbance, and the haulout 

usually returned to pre-launch levels 

within 45 to 120 minutes. 

In addition to behavioral disturbance, 

loud sounds may also cause TTS, which 

is a slight, recoverable loss of hearing. 

In order to further determine if harbor 

seals experience any change in their 

hearing sensitivity as a result of launch 

noise, researchers conducted Auditory 

Brainstem Response (ABR) testing on 10 

harbor seals prior to, and after, the 

launches of 3 Titan IV rockets (one of 

the loudest launch vehicles at the south 

VAFB haul-out site). Detailed analysis 

of the changes in waveform latency and 

waveform replication of the ABR 

measurements showed that there were 

no detectable changes in the seals’

hearing sensitivity as a result of the 

launch noise (SRS Technologies, 2001). 

The launches at VAFB do not appear 

to have had long-term effects on the 

harbor seal population in this area. The 

total population of harbor seals at VAFB 

is estimated to be 1,040 animals and has 

been increasing at an annual rate of 12.6 

percent. Since 1997, there have been 5 

to 7 space vehicle launches per year and 

there appears to be only short-term 

disturbance effects to harbor seals as a 

result of launch noise (SRS 

Technologies, 2001). Harbor seals will 

temporarily leave their haul-out when 

exposed to launch noise; however they 

generally return to the haul-out within 

one hour. 


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Harbor seals use Ugak Island as a 

pupping site. Though no launches have 

as yet taken place during the pupping 

period at Ugak Island (late May through 

mid-June), they may at some point in 

the future. There has been little 

systematic study of the reactions of 

pinnipeds to rocket launches or aircraft 

overflights during pupping periods. 

Pinnipeds hauled out for pupping or 

molting are generally the most 

responsive to aircraft overflights 

(Richardson et al., 1995). Harbor seals 

often leave beaches when aircraft fly 

over and then sometimes haulout at a 

different site afterwards, which results 

in permanent separation if pups are 

unable to follow their mothers into the 

water. Additionally, very young pups 

that are pushed into the water as the 

adults flush may subsequently drown. 

One study showed more than 10 percent 

of approximately 2000 pups born on one 

Alaskan island died as a result of 

disturbance from low-flying aircraft 

(Richardson et al., 1995). The same 

study found that aircraft were more 

disturbing on calm days, when at low 

altitudes, and after recent disturbances. 

Since harbor seals have been shown to 

flush into the water in response to 

rocket launch noise of a level similar to 

that occurring at Ugak Island, one can 

infer that separation of pups from their 

mothers could occur if the launch 

occurred during a pupping period and 

the harbor seals were using the north 

side of the island to pup on. 

Rocket launches at KLC have 

associated security overflights that 

occur an approximate total of 5 to 10 

times per day in the days preceding and 

following the launch. Several studies of 

both harbor seals and Steller sea lions 

cited in Richardson et al., 2005, suggest 

that these animals respond significantly 

less to overflights of both planes and 

helicopters that occur above 305 m (0.2 

mi). One mitigation requirement 

included in the rule is that security 

overflights immediately associated with 

the launch will not approach occupied 

pinniped haulouts on Ugak Island by 

closer than 0.25 mile (0.4 km), and will 

maintain a vertical distance of 1000 ft 

(305 m) from the haulouts when within 

0.5 miles (0.8 km), unless indications of 

human presence or activity warrant 

closer inspection of the area to assure 

that national security interests are 

protected in accord with law. 

Monitoring flights will not approach 

closer than 0.25 (0.4 km) mile from the 

island. It is unlikely that either of these 

overflights will add noticeably to any 

harassment of pinnipeds surrounding 

the rocket launches. 

Harbor seals primarily use the east 

side of Ugak Island, though they 

sometimes use the north side of the 

island both for hauling out and for 

pupping. For several reasons, NMFS 

believes that the seals using the east 

side of the island are not likely to be 

harassed by rocket launch noise: the 

eastern shoreline faces away from the 

point the rocket noise is emanating from 

and is backed up by a 300–500–ft (91.4–

152.4 km) cliff; the rough seas hitting 

rocks make the ambient noise very loud 

on the eastern shoreline; and data 

collected during the ait–2 launch 

showed that one hour after the launch, 

when sea lions were swimming 

immediately off the rocks on the north 

shore, the harbor seals were still hauled 

out in the same numbers and at the 

same locations that they were 5 hours 

before the launch. NMFS believes that 

harbor seals hauled out on the north 

beach may be temporarily behaviorally 

disturbed and possibly temporarily 

displaced from their haulouts 

immediately following rocket launches. 

If launches occur during the harbor seal 

pupping period and harbor seals have 

also chosen to pup on the north beach, 

it is possible that harbor seal pups could 

die as a result of the adults flushing in 

response to the rocket noise. NMFS 

believes that the proposed action may 

result in the temporary behavioral 

disturbance and, less likely, mortality 

(pups only) of small numbers, in 

relation to the population numbers (see 

next section), of harbor seals. NMFS 

anticipates that these impacts will have 

no more than a negligible effect on the 

species stock. 

Numbers of Marine Mammals Expected 

to be Taken by Harassment 

The highest number of Steller sea 

lions seen at one time on Ugak Island 

since 1993 is approximately 375 (1997). 

However, based on both dedicated and 

opportunistic surveys by one researcher, 

approximately 160 were seen in 1999 

and numbers have decreased since then 

(Wynne, pers. comm., 2005). 

Approximately 50 were seen in 2001 

and numbers have further decreased 

since then. Steller sea lions seasonally 

use the Ugak island sites (the northern 

spit, and occasionally the southwest tip) 

as haulout sites from late June to early 

October. While not logistically optimal 

for the applicant, the fastest that KLC 

can prepare the facilities for a new 

launch right after a launch is 4 weeks, 

which means that at most it would be 

logistically possible to have four 

launches a year within the time that the 

sea lions are using Ugak Island as a 

haulout. Based on the maximum 

number seen and the sea lion trend over 

the last several years, NMFS anticipates 

that the most sea lions likely to be 

harassed during one launch is 300. This 

translates to the potential harassment of 

1,200 Steller sea lions in one year 

(assuming different individual sea lions 

are harassed each launch). However a 

mitigation measure is required that will 

limit the number of launches within the 

time that sea lions are present to three, 

which lowers the number of potential 

harassments to 900 animals annually. 

This is a small number relative to the 

affected stock. 

Harbor seal numbers have steadily 

increased at Ugak Island since 1992, and 

just over 900 were counted during the 

molt in 2004 (Wynne, pers. comm., 

2005). The last pupping season counts 

showed 290 adults and 88 pups in 1993, 

and 292 adults and 96 pups in 1994. 

According to local researchers, the 

primary haulout for harbor seals is on 

the east side of the island (where NMFS 

does not believe there are likely to be 

any effects from the rocket launch noise) 

and the majority of the seals may be 

found there. In three days of her 1994 

survey, Wynne (2005) found that an 

average of approximately 25 percent of 

both adults and pups were hauled out 

on the north side of the beach. 

Therefore, NMFS estimates that of a 

maximum of 900 harbor seals present 

during any launch, 275 of them may be 

located on the north side of the island 

and exposed to the rocket launch noise. 

Harbor seals are present at Ugak all year, 

which means that if there were nine 

launches in one year, a maximum of 

2,475 harbor seals could be exposed to 

the noise and potentially harassed in 

one year (assuming different individuals 

were present each launch, else the 

number is smaller, but some may be 

harassed more than one time). The 

harbor seal pupping season runs from 

mid-May through June. Since it takes a 

minimum of 4 weeks to prepare for a 

new launch, it would be logistically 

possible to have two launches during 

that time. The highest number of pups 

seen at Ugak was 96 in 1994. Though 

numbers of pups have probably 

increased with the numbers of adults 

since 1994 (by a factor of three), only a 

minority of pups (estimated one fourth) 

will likely be present on the north side 

of the island and exposed to the noise 

and potential flushing of adults. One 

scientist reported that more than 10 

percent of 2000 harbor seal pups died 

on an Alaskan Island following 

disturbance from exposures to low 

flying aircrafts (Richardson et al., 1995). 

NMFS estimates that if 72 pups (highest 

number seen (in 1996) multiplied by 

three for population increase and 

divided by four to account for number 

exposed on north side of island) were 


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twice exposed to rocket noise sufficient 

to flush the adults, up to 20 harbor seal 

pups (15 percent) might die. However, 

one required mitigation measure limits 

AADC to one launch during the 

pupping season, which lowers the 

potential mortality of harbor seal pups 

to 11 annually (55 over the life of the 

regulations). NMFS believes that a small 

number (no more than 2,488) of harbor 

seals may be affected relative to the 

population estimates. 

Effects of Rocket Launches on 

Subsistence Needs 

There are no subsistence uses of 

pinniped species in Alaska waters 

within the KLC primary study area, and, 

therefore, NMFS anticipates no effects 

on subsistence needs. 

Effects of Rocket Launches on Marine 

Mammal Habitat 

Solid rocket boosters would fall into 

the ocean away from any known or 

potential haulouts and the chances of a 

cetacean being in the wrong place at the 

wrong time are discountable. All sonic 

booms that reach the earth’s surface 

would be expected to be over open 

ocean beyond the outer continental 

shelf. Airborne launch sounds would 

mostly reflect or refract from the water 

surface and, except for sounds within a 

diameter of approximately 26 degrees 

directly below the launch vehicle, 

would not penetrate into the water 

column. The sounds that do penetrate 

would not persist in the water for more 

than a few seconds. Overall, rocket 

launch activities from KLC would not be 

expected to cause any impacts to 

habitats used by marine mammals, 

including pinniped haulouts, or to their 

food sources. 

Mitigation 

Under Section 101(a)(5) of the MMPA, 

adverse impacts are to be reduced to the 

lowest level practicable. Due to the 

nature of the rocket launches and the 

pinnipeds responses, the most obvious 

way to mitigate for the effects of the 

rocket launch noise is to minimize the 

number of launches that the Steller sea 

lions and harbor seals are exposed to. 

This sort of mitigation is logistically 

difficult and impracticable for AADC, as 

their launch operations are driven by 

the needs of the agencies and companies 

that utilize their facilities. However, 

NMFS and the applicant have worked 

out a way to reduce the potential Level 

B Harassment of sea lions by 25 percent 

and to reduce the potential Level A 

Harassment or mortality of harbor seal 

pups by 50 percent. 

In their application, AADC asked for 

authorization to take marine mammals 

during nine rocket launches annually. 

The quickest that the launch pad can be 

turned around for another launch is four 

weeks. This means that it would be 

logistically possible to launch 4 rockets 

during the season that the Steller sea 

lions are using Ugak Island, and 

logistically possible to launch two 

rockets during the harbor seal pupping 

season. As a mitigation measure, NMFS 

has incorporated into the rule and LOAs 

a requirement that not more than an 

average of three launches per year could 

occur within the sea lion season, and 

not more than an average of one launch 

per year could occur during the harbor 

seal pupping season. Therefore, no more 

than 15 launches would occur within 

the sea lion season (June 15 - September 

30) over the course of the 5–year rule, 

and no more than 5 launches would 

occur during the harbor seal pupping 

season (May 15 - June 30) over the 

course of the 5–year rule. 

Even though the video monitoring of 

Steller sea lions at Ugak Island indicates 

they did not flush in response to 

helicopter or noise recorded during the 

same time period, the scientific 

literature shows that pinnipeds will 

often have an adverse response to lowflying aircraft. AADC typically flies 

several security overflights in 

conjunction with a rocket launch. As a 

result, NMFS has incorporated a 

mitigation measure wherein the security 

flights immediately associated with 

rocket launches would not approach 

closer than 0.25 mile (0.4 km) to 

occupied pinniped haulout sites or fly 

lower than 1000 ft (305 m) when the 

plane is closer than 0.5 miles (0.8 km) 

from occupied pinniped sites on Ugak 

Island unless indications of human 

presence or activity warrant closer 

inspection of the area to assure that 

national security interests are protected 

in accord with law. 

Monitoring 

Marine Mammal Monitoring 

The objective of monitoring Steller 

sea lions and Pacific harbor seals is to 

detect any indications of pinniped 

disturbance, injury, or mortality that 

results from KLC rocket launches at the 

Ugak Island haulout site. Monitoring 

would be conducted on Ugak Island for 

launches that take place between June 

15 and September 30, an observation 

period that includes the seasonal 

occupation of the Steller sea lions as 

well as the molting period of the harbor 

seals (when their numbers are higher 

and their responses to disturbance 

potentially greater). Launches occurring 

during the harbor seal pupping season 

(May 15 – June 30) would also be 

monitored. All haulout areas on Ugak 

Island would be monitored before, 

during, and after launch operations to 

document and characterize any 

observed responses. Monitoring would 

be designed to determine the type of 

reactions (or injury or mortality) and 

their relationship to noises associated 

with rocket launches. Fixed-wing aerial 

surveys would be flown for any 

launches taking place from June 15 

through September 30 using a minimum 

flight altitude of 156 m (500 ft) above 

sea level (ASL) to be flown at low tide 

or, with consultation, toward evening. 

The aircraft would come no closer than 

0.25 miles (0.4 km) to the haulout. 

Depending on aircraft availability, one 

or two NMFS-approved biologist 

observers would accompany the pilot. 

Data will be gathered both visually and 

with a camera having a zoom lens. A 

total of five surveys would be flown, if 

weather conditions permit. The first 

would occur the day prior to a 

scheduled launch and the second as 

soon after the launch as possible. 

Replicate surveys will be flown the 

following three successive days to 

determine post-launch haulout-use 

patterns. 

For any launches that occur from June 

15 through September 30, a real-time 

video record will be made of sea lion 

reactions to launch-related noises. This 

will be accomplished by the installation 

of a remote custom-designed, closedcircuit, weatherproof, time-lapse video 

camera system at the base of the Ugak 

Island sea lion haulout before a launch, 

which will be retrieved post-launch. 

Results of the aerial and video surveys 

will be compared, providing 

information on startle effects and 

durations. In addition, video data will 

be time-correlated with rocket motor 

noise measurements to provide 

objective information on any startle 

responses or indications of disturbance 

reactions that may occur resulting from 

rocket launches. Comparisons will also 

be made with baseline data assembled 

by AADC to help gauge any natural 

trends that may be occurring. 

The majority of harbor seals haul out 

on the eastern side of Ugak Island, 

which is completely inaccessible to 

pedestrian or boat traffic due to the high 

cliffs and violent surf, so it is not 

possible to set up video recorders there. 

However, approximately 25 percent of 

the harbor seals haul out on the eastern 

end of the north-facing shore of Ugak 

Island. Though it has not yet been 

attempted, it may be possible to set up 

a camera with a zoom lens on the 

accessible western end of the northfacing shore to record harbor seal 

behavior on the middle or eastern end 


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of the shore, or on the rocks off shore. 

At some time prior to the first launch 

that occurs between May 15 and June 

30, when harbor seals are present 

(perhaps immediately before or after the 

camera has already been set up to record 

sea lions), AADC will test the efficacy 

of using the camera on the harbor seal 

haulout and report their findings to 

NMFS. If successful, the same real-time 

video and acoustic measurements (see 

below) will be conducted when 

launches occur during the harbor seal 

pupping season as occur when the sea 

lions are present. 

NMFS believes it unlikely that the 

security overflights immediately 

preceding and following the rocket 

launches would result in the harassment 

of marine mammals. However, when 

pinnipeds are present at haulouts 

during security overflights associated 

with rocket launches, a member of the 

flight crew will note and record whether 

pinnipeds appeared to flush as a result 

of the overflight and estimate a number. 

Acoustic Measurements 

Rocket motor noise monitoring would 

be done concurrently with video 

monitoring at the Ugak Island haulouts. 

These data will be synchronized to the 

video data to document correlations 

between noise signatures and pinniped 

responses. Sound intensity and 

frequency metrics will be recorded 

before, during, and after a launch by an 

SLM mounted on a permanent 

stanchion upon the Ugak Island haulout 

one day or more before a launch and 

retrieved within one day post-launch. 

The SLM will be set to highlight sounds 

greater than 70 dBA. 

Reporting 

In the event that any cases of 

pinniped injury or mortality are judged 

to result from launch activities at any 

time during the period covered by these 

regulations, this event will be reported 

to NMFS immediately. 

Data from monitoring activities would 

be analyzed, summarized, and reported 

to NMFS within 90 calendar days 

following cessation of field activities for 

each launch. The report would include 

the timing and nature (vehicle type, 

azimuth, measured sound data) of 

launch operations as well as the times 

of the monitoring flights. The report 

would include sea lion and harbor seal 

counts (separated into adult and pup), 

as well as observations of any other 

marine mammals seen during 

monitoring or security overflights. The 

report will summarize behavioral 

observations in relation to recorded, or 

other known, stimuli (launches or 

aircraft), and estimate the number of the 

affected animals and the nature of their 

reactions. The report will include a 

summary of the acoustic measurements. 

The report will include a copy of all 

videotapes containing sea lion and 

harbor seal footage, and selected 

illustrative 35mm pictures, crossreferenced to the appropriate launches 

and acoustic measurements. AADC 

would also include this information in 

its Annual Environmental Monitoring 

and Natural Resources Management 

Report. 

An interim technical report is 

proposed to be submitted to NMFS 60 

days prior to the expiration of each 

annual LOA issued under these 

regulations, along with any request for 

a subsequent annual LOA. This interim 

technical report would provide full 

documentation of methods, results, and 

interpretation pertaining to all 

monitoring tasks for launches during the 

period covered by the LOA. NMFS 

recognizes that only preliminary 

information would be available for any 

launches during the 60–day period 

immediately preceding the expiration of 

the LOA. 

In addition to annual interim 

technical reports, NMFS is requiring 

AADC to submit a draft comprehensive 

technical report to NMFS 180 days prior 

to the expiration of the regulations. This 

draft technical report would provide full 

documentation of methods, results, and 

interpretation of all monitoring tasks for 

launches during the first four LOA’s, 

plus preliminary information for 

launches during the first 6 months of 

the final LOA. AADC will incorporate 

NMFS recommendations on the draft 

report and submit a final comprehensive 

technical report within 60 days of the 

expiration of the regulations. 

National Environmental Policy Act 

(NEPA) 

The FAA prepared an Environmental 

Assessment (EA) and subsequently 

issued a Finding of No Significant 

Impact (FONSI) for AADC’s proposal to 

construct and operate a launch site at 

Narrow Cape on Kodiak Island, Alaska. 

Since 1998, AADC has provided 

monitoring reports related to noise and 

marine mammal impacts associated 

with ongoing rocket launches from KLC. 

After reviewing the new information 

contained in the monitoring reports and 

considering the MMC’s comments that 

impacts to harbor seals should be more 

comprehensively addressed, NMFS 

decided that a more current 

environmental analysis was necessary. 

In 2005, NMFS prepared an EA on the 

Promulgation of Regulations 

Authorizing Take of Marine Mammals 

Incidental to Rocket Launches at Kodiak 

Launch Complex, Alaska, and the 

Issuance of Subsequent Letters of 

Authorization. NMFS found that the 

promulgation of a 5–yr Rule and 

issuance of LOAs will not significantly 

impact the quality of the human 

environment and issued a Finding of No 

Significant Impact (FONSI). 

Accordingly, preparation of an 

Environmental Impact Statement or 

Supplemental Environmental Impact 

Statement for this action was not 

necessary. 

Endangered Species Act (ESA) 

The endangered Steller sea lion is the 

only federally listed marine mammal 

under NMFS’ jurisdiction that is likely 

to be adversely affected by the proposed 

action. Ugak Island also contains 

designated critical habitat for the Steller 

sea lion. The FAA and NMFS have 

consulted with the Endangered Species 

Division of the NMFS Alaska Region. A 

Biological Opinion (BO) issued in 

November, 2003 found that the 

proposed action is not likely to 

jeopardize the continued existence of 

listed species nor result in the 

destruction or adverse modification of 

critical habitat. 

The northern sea otter, federally listed 

as threatened under the ESA, may be 

found in the KLC area throughout the 

year. The northern sea otter is within 

the jurisdiction of the USFWS, which is 

responsible for issuing authorizations 

and incidental take statements for takes 

of this species. AADC is currently in 

consultation with USFWS regarding the 

sea otter. 

Steller’s eider, federally listed 

threatened and under the jurisdiction of 

the USFWS, is found in the vicinity of 

the KLC. Following several years of 

recommended monitoring of both 

Steller’s eiders and bald eagles (not 

federally listed in Alaska), the USFWS 

concurred with AADC’s conclusion that 

the rocket launches at AADC have no 

effect on either of these species. 

Classification 

This action has been determined to be 

not significant for purposes of Executive 

Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration at the 

proposed rule stage that this rule would 

not have a significant economic impact 

on a substantial number of small 

entities. The rule would apply only to 

AADC, and would have no effect, 

directly or indirectly, on small 

businesses. The rule may affect a small 

number of contractors providing 

services related to reporting the impact 


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4308 Federal Register / Vol. 71, No. 17 / Thursday, January 26, 2006 / Rules and Regulations 

of the activity on marine mammals, 

some of whom may be small businesses, 

but the number involved would not be 

substantial. Because of this certification, 

a regulatory flexibility analysis is not 

required, and none was prepared. No 

comments concerning this certification 

were prepared. 

Notwithstanding any other provision 

of law, no person is required to respond 

to nor shall a person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act (PRA) unless that 

collection of information displays a 

currently valid Office of Management 

and Budget (OMB) control number. This 

proposed rule contains collection-ofinformation requirements subject to the 

provisions of the PRA. This collection 

has been approved previously by OMB 

under section 3504(b) of the PRA issued 

under OMB control number 0648–0151, 

and includes applications for LOAs and 

reports. 

List of Subjects in 50 CFR Part 216 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and record keeping 

requirements, Seafood, Transportation. 

■ For reasons set forth in the preamble, 

50 CFR part 216 is amended as follows: 

PART 216—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 216 

continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq. 

■ 2. Subparts R, S, and T are added and 

reserved. 

■ 3. Subpart U is added to read as 

follows: 

Subpart U—Taking of Marine Mammals 

Incidental to Rocket Launches from 

the Kodiak Launch Complex, Kodiak 

Island, AK 

Sec. 

216.230 Specified activity and specified 

geographical region. 

216.231 Effective dates. 

216.232 Permissible methods of taking. 

216.233 Prohibitions. 

216.234 Mitigation, monitoring and 

reporting. 

216.235 Letter of Authorization. 

216.236 Renewal of a Letter of 

Authorization. 

216.237 Modifications to a Letter of 

Authorization. 

Subpart U—Taking of Marine Mammals 

Incidental to Rocket Launches from 

the Kodiak Launch Complex, Kodiak 

Island, AK 

§ 216.230 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to the incidental taking of marine 

mammals specified in paragraph (b) of 

this section by U.S. citizens engaged in 

rocket launch activities (up to nine 

launches per year) at the Kodiak Launch 

Complex on Kodiak Island, Alaska. 

(b) The incidental take of marine 

mammals under the activity identified 

in paragraph (a) of this section is limited 

to Steller sea lions (Eumetopius jubatus) 

and Pacific harbor seals (Phoca vitulina 

richardsi). 

§ 216.231 Effective dates. 

Regulations in this subpart are 

effective from February 27, 2006 

through February 28, 2011. 

§ 216.232 Permissible methods of taking. 

(a) Under a Letter of Authorization 

issued pursuant to § 216.106, the Alaska 

Aerospace Development Corporation 

and its contractors, may incidentally, 

but not intentionally, take Steller sea 

lions by Level B harassment, take adult 

Pacific harbor seals by Level B 

harassment, and take harbor seal pups 

by Level B or Level A harassment or 

mortality, in the course of conducting 

missile launch activities within the area 

described in § 216.230(a), provided all 

terms, conditions, and requirements of 

these regulations and such Letter of 

Authorization are complied with. 

(b) The activities identified in 

§ 216.230(a) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, adverse impacts on 

marine mammals and their habitat. 

§ 216.233 Prohibitions. 

The following activities are 

prohibited: 

(a) The taking of a marine mammal 

that is other than unintentional. 

(b) The violation of, or failure to 

comply with, the terms, conditions, and 

requirements of this subpart or a Letter 

of Authorization issued under 

§ 216.106. 

(c) The incidental taking of any 

marine mammal of a species not 

specified, or in a manner not 

authorized, in this subpart. 

§ 216.234 Mitigation, monitoring and 

reporting. 

(a) No more than five launches may 

occur between May 15 and June 30 

within the 5–year period, and no more 

than 15 launches may occur between 

June 15 and September 30 within the 5–

year period. 

(b) The holder of the Letter of 

Authorization must implement the 

following measures for all launches 

occurring from June through October: 

(1) Conduct five replicate fixed-wing 

aerial surveys of all hauled out Steller 

sea lions and harbor seals at Ugak 

Island, each flown at low tide (weather 

permitting), using a minimum flight 

altitude of 500 feet (152 meters) above 

sea level, with an approach no closer 

than 0.25 mi (0.40 km) to the haulout, 

and conducted a day prior to, directly 

following, and for three consecutive 

days after a launch. 

(2) At least one biologist observer will 

accompany the pilot during all aerial 

surveys. 

(3) Data gathered during aerial 

surveys will be gathered visually and 

through the use of a camera with a zoom 

lens. 

(4) A real-time video record of Steller 

sea lion reactions to launch noise will 

be made using a video camera system 

placed upon the Ugak Island haulout 

before a scheduled launch and then 

retrieved after the launch. 

(5) Sound intensities and frequencies 

of rocket motor noise will be recorded 

before, during, and after a launch by a 

sound level monitor mounted upon the 

Ugak Island haulout and set to highlight 

sounds greater than 70 dBA. Monitors 

will be installed one day or more before 

a launch and retrieved within one day 

post-launch. 

(c) A trial effort to obtain real-time 

video records of harbor seals hauled out 

at the eastern end of the northern side 

of the island and their reactions to 

launch noise will be made as soon as 

practicable. A brief report summarizing 

the efficacy of this monitoring effort 

should be included in the standard 

monitoring reports for that launch and 

year. If valuable data may be gathered 

using this method, real-time video 

records of harbor seals reactions to 

launch noise will be made before 

launches scheduled between May 15 

and June 30, and between June 30 and 

September 30 if the equipment is not 

being used to record Steller sea lions, 

and then retrieved after the launches. 

(d) Security flights immediately 

associated with rocket launches may not 

approach closer than 0.25 mile (0.4 km) 

to occupied pinniped haulout sites on 

Ugak Island or fly lower than 1000 ft 

(305 m) when the plane is closer than 

0.5 miles (0.8 km) from occupied 

pinniped sites on Ugak Island unless 

indications of human presence or 

activity warrant closer inspection of the 

area to assure that national security 


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interests are protected in accordance 

with the law. 

(e) When pinnipeds are present at 

haulouts during security overflights 

associated with rocket launches, and 

when practicable, a member of the flight 

crew will note and record whether 

pinnipeds appeared to flush as a result 

of the overflight and estimate a number. 

(f) The holder of the Letter of 

Authorization is required to cooperate 

with the National Marine Fisheries 

Service and any other Federal, state or 

local agency monitoring the impacts of 

the activity on marine mammals. The 

holder must notify the NMFS Alaska 

Assistant Regional Administrator for 

Protected Resources and to the NMFS 

Division of Permits, Conservation, and 

Education, Office of Protected Resources 

at least 2 weeks prior to commencing 

monitoring activities. 

(g) Activities related to the monitoring 

described in paragraph (a) of this 

section or in the Letter of Authorization 

may be conducted without a separate 

scientific research permit. 

(h) In coordination and compliance 

with the Alaska Aerospace Development 

Corporation, the National Marine 

Fisheries Service may place an observer 

on Kodiak or Ugak Islands for any 

marine mammal monitoring activity 

prior to, during, or after a missile launch 

to monitor impacts on marine mammals, 

provided observers are not within the 

calculated danger zone of the rocket’s 

flight path during a launch. 

(i) The holder of the Letter of 

Authorization must comply with any 

other applicable state or federal permits, 

regulations, and environmental 

monitoring agreements set up with other 

agencies. 

(j) The National Marine Fisheries 

Service must be informed immediately 

of any proposed changes or deletions to 

any portions of the monitoring 

requirements. 

(k) The holder of the Letter of 

Authorization must implement the 

following reporting requirements: 

(1) If indications of injurious or lethal 

take are recorded, the NMFS Alaska 

Assistant Regional Administrator for 

Protected Resources and the NMFS 

Division of Permits, Conservation, and 

Education, Office of Protected 

Resources, or their designees, will be 

contacted within 48 hours. In 

consultation with the National Marine 

Fisheries Service, launch procedure, 

mitigation measures, and monitoring 

methods must be reviewed and 

appropriate changes made prior to the 

next launch. 

(2) Data from monitoring activities 

will be reported to the National Marine 

Fisheries Service within 90 days 

following cessation of field activities for 

each launch. After the trial effort to 

videotape harbor seals at the eastern end 

of the north side of Ugak island, a 

summary of the effectiveness of the 

videotaping will be included in the 

associated launch report. 

(3) An interim technical report must 

be submitted to the NMFS Alaska 

Assistant Regional Administrator for 

Protected Resources and to the NMFS 

Division of Permits, Conservation, and 

Education, Office of Protected Resources 

at least 60 days prior to the expiration 

of each annual Letter of Authorization. 

This report must contain the following 

information: 

(i) Timing and nature of launch 

operations and monitoring flights; 

(ii) A summary of marine mammal 

behavioral observations in relation to 

recorded acoustic stimuli and other 

known visual or audio stimuli; 

(iii) An estimate of the amount and 

nature of all takes. 

(iv) A copy of all videotapes 

containing sea lion and harbor seal 

footage, and selected illustrative 35 mm 

or digital pictures, cross-referenced to 

the appropriate launches and acoustic 

measurements. 

(4) A draft comprehensive technical 

report will be submitted to the NMFS 

Alaska Assistant Regional Administrator 

for Protected Resources and to the 

NMFS Division of Permits, 

Conservation, and Education, Office of 

Protected Resources, 180 days prior to 

the expiration of these regulations with 

full documentation of the methods, 

results, and interpretation of all 

monitoring tasks for launches during all 

expired Letters of Authorization, plus 

preliminary information for launches 

during the first 6 months of the final 

Letter of Authorization. 

(5) A revised final comprehensive 

technical report, including all 

monitoring results during the entire 

period of the Letter of Authorization, 

will be due 90 days after the end of the 

period of effectiveness of these 

regulations. 

(6) The interim and draft 

comprehensive technical reports will be 

subject to review and comment by the 

National Marine Fisheries Service. Any 

recommendations made by the National 

Marine Fisheries Service must be 

addressed in the final comprehensive 

technical report prior to acceptance by 

the National Marine Fisheries Service. 

§ 216.235 Letter of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time specified in the Letter 

of Authorization, but a Letter of 

Authorization may not be valid beyond 

the effective period of the regulations. 

(b) A Letter of Authorization will set 

forth: 

(1) Species of marine mammals 

authorized to be taken; 

(2) Permissible methods of incidental 

taking; 

(3) Specified geographical region; 

(4) Means of effecting the least 

practicable adverse impact on the 

species of marine mammals authorized 

for taking and its habitat; and 

(5) Requirements for monitoring and 

reporting incidental takes. 

(c) Issuance of a Letter of 

Authorization will be based on a 

determination that the number of 

marine mammals taken by the activity 

will be small, and that the total taking 

by the activity as a whole will have no 

more than a negligible impact on the 

affected species or stocks of marine 

mammal(s). 

(d) Notice of issuance or denial of a 

Letter of Authorization will be 

published in the Federal Register 

within 30 days of a determination. 

§ 216.236 Renewal of a Letter of 

Authorization. 

(a) A Letter of Authorization for the 

activity identified in § 216.230(a) will be 

renewed upon: 

(1) Notification to the National Marine 

Fisheries Service that the activity 

described in the application for a Letter 

of Authorization submitted under 

§ 216.235 will be undertaken and that 

there will not be a substantial 

modification to the described activity, 

mitigation or monitoring undertaken 

during the upcoming season; 

(2) Timely receipt of and acceptance 

by the National Marine Fisheries 

Service of the monitoring reports 

required under § 216.234; 

(3) A determination by the National 

Marine Fisheries Service that the 

mitigation, monitoring and reporting 

measures required under §§ 216.232 and 

216.234 and the Letter of Authorization 

were undertaken and will be undertaken 

during the upcoming period of validity 

of a renewed Letter of Authorization; 

and 

(4) A determination that the number 

of marine mammals taken by the 

activity will be small and that the total 

taking by the activity will have no more 

than a negligible impact on the affected 

species or stocks of marine mammal(s), 

and that the level of taking will be 

consistent with the findings made for 

the total taking allowable under these 

regulations. 

(b) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 


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4310 Federal Register / Vol. 71, No. 17 / Thursday, January 26, 2006 / Rules and Regulations 

Register within 30 days of a 

determination. 

§ 216.237 Modifications to a Letter of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to a Letter of Authorization 

issued pursuant to the provisions of this 

subpart shall be made by the National 

Marine Fisheries Service until after 

notification and an opportunity for 

public comment has been provided. A 

renewal of a Letter of Authorization 

under § 216.236 without modification is 

not considered a substantive 

modification. 

(b) If the Assistant Administrator 

determines that an emergency exists 

that poses a significant risk to the wellbeing of the species or stocks of marine 

mammals specified in § 216.230(b), a 

Letter of Authorization may be 

substantively modified without prior 

notification and an opportunity for 

public comment. Notification will be 

published in the Federal Register 

within 30 days of the action. 

Dated: January 19, 2006. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

[FR Doc. 06–765 Filed 1–25–06; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[I.D. 011906B] 

Atlantic Highly Migratory Species; 

Atlantic Bluefin Tuna Fisheries 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; inseason 

retention limit adjustment. 

SUMMARY: NMFS has determined that 

the Atlantic bluefin tuna (BFT) General 

category daily retention limit for the 

final three restricted fishing days (RFD) 

should be adjusted. These General 

category RFDs are being waived to 

provide reasonable opportunity for 

utilization of the coastwide General 

category BFT quota. Therefore, NMFS 

waives the final three RFDs scheduled 

for January 2006, and increases the daily 

retention limit from zero to two large 

medium or giant BFT on these 

previously designated RFDs. 

DATES: Effective dates for BFT daily 

retention limits are provided in Table 1 

under SUPPLEMENTARY INFORMATION. 

FOR FURTHER INFORMATION CONTACT: Brad 

McHale, 978–281–9260. 

SUPPLEMENTARY INFORMATION: 

Regulations implemented under the 

authority of the Atlantic Tunas 

Convention Act (16 U.S.C. 971 et seq.) 

and the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act; 16 U.S.C. 1801 

et seq.) governing the harvest of BFT by 

persons and vessels subject to U.S. 

jurisdiction are found at 50 CFR part 

635. The 2005 General category BFT 

fishing season began on June 1, 2005, 

and ends January 31, 2006. The final 

initial 2005 BFT specifications and 

General category effort controls (June 7, 

2005; 70 FR 33033) established the 

following RFD schedule for the 2005 

fishing year: All Fridays, Saturdays, and 

Sundays from November 18, 2005, 

through January 31, 2006, and 

Thursday, November 24, 2005, 

inclusive, provided quota remained 

available and the fishery was open. 

RFDs are intended to extend the General 

category BFT fishery late into the 

southern Atlantic season. NMFS has 

determined that the BFT General 

category daily retention limit for the 

final three RFDs should be adjusted as 

described in Table 1 to provide 

reasonable opportunity to utilize the 

coastwide General category BFT quota. 

TABLE 1.—EFFECTIVE DATES FOR RETENTION LIMIT ADJUSTMENTS

Permit Category Effective Dates Area BFT Size Class Limit 

Atlantic tunas General and HMS Charter/ 

Headboat (while fishing commercially). 

January 27, 28, and 29, 2006. All Two BFT per vessel per day/trip, measuring 73 inches (185 cm) CFL or larger. 

Adjustment of General Category Daily 

Retention Limits 

Under 50 CFR 635.23(a)(4), NMFS 

may increase or decrease the General 

category daily retention limit of large 

medium and giant BFT over a range 

from zero (on RFDs) to a maximum of 

three per vessel to allow for maximum 

utilization of the quota for BFT. NMFS 

has taken multiple actions during the 

2005 fishing year in an attempt to allow 

for maximum utilization of the General 

category BFT quota. On September 28, 

2005 (70 FR 56595), NMFS adjusted the 

commercial daily BFT retention limit 

(on non-RFDs), in all areas, for those 

vessels fishing under the General 

category quota, to two large medium or 

giant BFT, measuring 73 inches (185 

cm) or greater curved fork length (CFL), 

per vessel per day/trip, effective through 

January 31, 2006, inclusive, provided 

quota remained available and the 

fishery remained open. On November 9, 

2005 (70 FR 67929), NMFS waived the 

previously designated RFDs for the 

month of November; on December 16, 

2005 (70 FR 74712), NMFS waived 

designated RFDs for December 16–18, 

inclusive; on January 4, 2006 (71 FR 

273), NMFS waived designated RFDs for 

December 31, 2005, and January 1, 2006, 

inclusive; on January 9, 2006 (71 FR 

1395), NMFS waived RFDs for January 

7, 8, 13, 14, and 15, 2006; and on 

January 20, 2006 (71 FR 3245), NMFS 

waived the designated RFDs for January 

20, 21, and 22, 2006. The daily retention 

limit for all the above dates was 

adjusted to two large medium or giant 

BFT to provide reasonable opportunity 

to harvest the coastwide quota. 

On December 7, 2005 (70 FR 72724), 

NMFS adjusted the General category 

quota by conducting a 200 mt inseason 

quota transfer to the Reserve category, 

resulting in an adjusted General 

category quota of 708.3 mt. This action 

was taken to account for any potential 

overharvests that may occur in the 

Angling category during the 2005 

fishing year (June 1, 2005 through May 

31, 2006) and to ensure that U.S. BFT 

harvest is consistent with international 

and domestic mandates. 

Catch rates in the BFT General 

category fishery have generally been 

low, the average catch rate for December 

2005 and January 2006 is approximately 

3.0 mt/day. Based on a review of dealer 

reports, daily landing trends, available 

quota, weather conditions, and the 

availability of BFT on the fishing 

grounds, NMFS has determined that 

waiving the final three RFDs established 

for January 27, 28, and 29, 2006, and 

increasing the General category daily 

BFT retention limit on those RFDs is 

warranted to assist the fishery in 

accessing the available quota. Therefore, 

NMFS adjusts the General category 


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